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The constitutionally protected right to record police officers on duty in public places such as parks, which was affirmed in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), has been affirmed by the First Circuit to not only include parks and other traditional public places, but now even routine traffic stops.

In Glik, the plaintiff filmed several Boston police officers arresting a young man on the Boston Commons. The court in Glik held that the First Amendment protects the right of individuals to videotape police officers performing their duties in public, recognizing that it firmly establishes and protects “a range of conduct” surrounding the gathering and dissemination of information. Id. at 82.

The recently decided case of Gericke v Weare broadens this right to include routine traffic stops, concluding that a traffic stop does not extinguish an individual’s right to film. The main question that was presented in Gericke was whether a a routine traffic stop was a police duty carried out in public. The court said yes and compared Glik with Gericke, stating that “those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is police carrying out their duties in public.” Id.

But the court recognized that there may be some limitations on this right because the circumstances of a traffic stop can potentially become dangerous to an officer, if for example in this case, firearms are present in the stopped vehicle. Such limitations may come into play when a police officer’s ability to perform his duties are actually impaired.

Reasonable restrictions, such as those of time, place, and manner, on the exercise of the right to film may be imposed when the circumstances justify them. See Glik, 655 F.3d at 84. A police officer can order filming to cease only when he/she can reasonably articulate that the filming itself is interfering, or is about to interfere, with his/her duties. Glik established that a reasonable officer cannot, consistently with the Constitution, prosecute citizens for violating wiretapping laws when they peacefully record a police officer performing his or her official duties in a public area.” Id. (emphasis added).

In Gericke, since there was a genuine factual dispute about whether the plaintiff had been disruptive, the court denied the officers’ motions for summary
judgment on the retaliatory prosecution claim stemming from the wiretapping charge. The First Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unrestricted unless it is deemed to be disruptive.

**** Update: Shortly after the decision, the Town of Weare settled the lawsuit for $57,500

If this excerpt from a Federal “Tip and Lead” report out of Los Angeles doesn’t necessarily convince you that a crime is afoot then you’re probably not alone. Nonetheless, that photographer, and many others like him, are now in a federal database under a plan to single out people who may be planning terrorist activity

The problem with the Nationwide Suspicious Activity Reporting Initiative (SARI) is that many of the activities it targets seem well, unsuspicious. Worse yet, many of those questioned under the program were engaging in activities protected by the First Amendment. Despite revisions to try to improve the program, people are still being added to the database who appear to have been doing nothing wrong. The offense of a man recently added to the database: being “very unfriendly.” Another was reported for buying a large quantity of cigarettes. Both individuals were of Middle Eastern decent. While the language initiative specifically prohibits racial profiling, a cursory investigation of what files are available suggests people are occasionally targeted for their race. The measure also appears to have the effect, intended or otherwise, of targeting photographers in particular.

Today, in a continued effort to raise awareness of the program and improve its operational standards, the ACLU released a series of the federally collected reports online. The NPPA joined the ACLU and 25 other organizations in a letter demanding reform. The groups also held a press conference in San Francisco addressing the impact of Suspicious Activity Reporting (“SAR”).

One of the central issues with the SAR initiative stems from confusion over what behavior falls within the programs purview. The 2009 revised standard for the Director of National Intelligence Information Sharing Environment (ISE), one of a pair of programs that make up the initiative, defines suspicious behavior as observable actions “reasonably indicative of pre-operational planning related to terrorism or other criminal activity.” Further, the revision makes clear that “the same constitutional standards that apply when conducting ordinary criminal investigations also apply to local law enforcement and homeland security officers conducting SAR inquiries.” The media groups applauded this as an improvement over previous versions of the program, but note that “the failure to clearly state that ISE policy did not authorize the collection, retention or dissemination of personally identifiable information in violation of federal regulations . . . has led to confusion and abuse.”

In addition, The FBI’s eGuardian program, the other arm of the initiative, does not meet the higher standards of the ISE. The continued reporting of non-threatening behavior suggests that this disjoint is one of the causes of the problem.

Today’s letter also observed that “Based on the SARs obtained thus far, photography and videography are frequently reported without additional facts that render these constitutionally-protected activities inherently suspicious. This reporting trend matches anecdotal reports from photographers who frequently complain that they are not only detained and questioned, but are also prevented from taking photographs and video and deprived of their equipment by police.”

The NPPA has been involved with dozens of similar incidents. They are troublingly common, even without a federal program that enables, if not encourages their occurrence. “As part of the ‘See Something Say Something Program’ the NPPA is deeply concerned that these policies create an unnecessary climate of fear and suspicion throughout the country under the guise of safety and security for otherwise First Amendment protected activity,” said NPPA general counsel Mickey Osterreicher.

Among the reforms suggested in today’s letter, the groups recommended the government “[re]move photography and other activities clearly protected by the First Amendment from inclusion in lists of SAR categories or other guidance criteria to prevent the unlawful stops, detention, and harassment of photographers, videographers, and journalists.”

Such a revision would be a step in the right direction to ensuring valuable First Amendment activities are not illegally obstructed, and that it’s the people who are monitoring the government, and not the other way around.

Announcing a Guide to Reporting at the 2012 Republican and Democratic National Conventions. The Digital Media Law Project(which supports indy and online journalists) just released an amazing guidebook for reporting on the conventions. Everything from local laws to closed streets and prohibited items and resources for dealing with police and secret service… it’s a huge resource and should be really valuable

Severe WX: With the projected path of Tropical Storm Isaac expected to come close to Tampa make sure you bring foul weather gear

RNC – Security Perimeter – Prohibited items. As stated on this site “As a condition of entry, the following items are inadmissible for safety and security reasons and will not be permitted within the security perimeter established for the 2012 Republican National Convention.” The “security perimeter” is the area controlled by the RNC and Secret Service. Proper credentials (delegates, media, etc.) will be required to enter that area.

It also appears that those entering the security perimeter with “Media” credentials will be exempt from the prohibition against:

Camcorders and cases, large cameras with lens (over four inches); Voice enhancement devices, such as bullhorn; Tripods for cameras; Backpacks or carry cases for binoculars, cameras.”

The Reporters Committee for Freedom of the Press has Published its Hotline Numbers for both Conventions. Write these numbers down and keep them readily accessible. Do not just put them in your cellphone as that might be seized if your are arrested!!!!

Visual Journalists may also contact me by phone or text at 716-983-7800. I will be present at both conventions.

Republican National Convention, Tampa, FL

Hotline: 813-984-3076 or 813-984-3078

Legal Counsel: Thomas & LoCicero PL

Operation: The local hotline will remain open around the clock from Friday, Aug. 24 through the end of the convention

Democratic National Convention, Charlotte, NC

Hotline: 704-343-2063; backup numbers 704-904-5834 or 919-428-5883

Legal Counsel: McGuireWoods LLP

Operation: The local hotline will be in service 24 hours a day from Friday, Aug. 31 through the end of the convention

Overview

In preparation for the expected protests during the upcoming political conventions being held in Tampa, FL (Republican – August 27-30) and Charlotte, NC (Democratic – September 3-6) I have conducted training with the police agencies in both cities regarding 1st and 4th Amendment rights of citizens and journalists. It is our hope to avoid a repeat of the interference with and the arrest of journalists that occurred four years ago in Denver and St. Paul.

NPPA was also instrumental in working with the Chicago Police Department prior to and during the NATO Summit held in May. I provided training to about 200 supervisory officers in April that was well received and was out on the streets along with police, protesters and the media for three days of marches and rallies throughout the city.

If the NATO protests were any indication, then journalists covering events outside the conventions can expect that everyone–mainstream media, bloggers, citizen journalists, protesters, and bystanders–will have a camera of one kind or another. With the widespread proliferation of cellphone cameras, capable of recording high-quality images along with audio and video, it seemed like everybody was documenting everything and everyone.

Legal Issues

For journalists recording audio of any type there was a heightened concern in Illinois that police would be enforcing the state’s Eavesdropping Act, which criminalizes (with a possible sentence of 15 years in jail) audio recording of police officers performing official duties in a public place without their consent but fortunately in the case of ACLU v. Alvarez, the U.S. Court of Appeals for the Seventh Circuit found the law to be unconstitutional only days before the start of the summit and granted a preliminary injunction against its enforcement. The Illinois State’s Attorney has indicated that she intends to appeal that decision to the U.S. Supreme Court this fall.

In a similar case – Glik v. Cunniffe, the U.S. Court of Appeals for the First Circuit held that individuals possess “a constitutionally protected right to videotape police carrying out their duties.” For those covering the Tampa convention, the Eleventh Circuit (which is controlling in Florida) also recognized a “First Amendment right . . . to photograph or videotape police conduct” in the 2000 case of Smith v. Cumming. And for those covering events in Charlotte, the law in the Fourth Circuit (which is controlling in North Carolina) is less settled, according to a 2009 one-page, unpublished per curium conclusory opinion in Szymecki v. Houck, that the “right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.”

NPPA asserts that the right to observe and record police officers performing their duties in a public place is a recognized form of free speech through which the press and the public may gather and disseminate information on matters of public concern. First Amendment protections regarding such activity, while not absolute, may only be limited by reasonable time, place, and manner restrictions, the courts ruled in Glik and Smith.

But the “reasonableness” of a reasonable time, place, and manner restriction is often in the eyes of the beholder. Police issuing an order to disperse may expect everyone including those with cameras to leave the area while journalists may believe that moving back or out of the way constitutes compliance.

Local Ordinances

Both Tampa and Charlotte have established security zones (see Tampa Secret Service info) around their respective convention centers. Those ordinances also ban a long list of items deemed to be potential weapons, so journalists who might come prepared with gas masks may find they are violating the new restrictions by carrying one. Also prohibited from places designated as “public viewing areas” are: “sticks, poles, ladders, monopods, bipods, and tripods.” These cities have also established “free speech zones,” where permitted marches may take place and speakers may address the public. It is also important to note that many of the streets in Charlotte that appear to be public are actually privately owned by many of the banks in that city, which may further complicate the right to record.

Federal Trespass

Another concern will be the enforcement of H.R. 347 also known as “The Federal Restricted Buildings and Grounds Improvement Act of 2011,” which was signed into law in March, making it a federal offense to cause a disturbance at certain events. More specifically, anyone who trespasses on specified property or at times and locations “so restricted in conjunction with an event designated as a special event of national significance” may be prosecuted and subject to a fine or imprisonment or both. Both conventions have been designated a “National Special Security Event” by the Department of Homeland Security.

Under this “trespass bill” anyone “knowingly” entering a restricted area under Secret Service control who “engages in disorderly or disruptive conduct” or “who, with the intent to impede or disrupt the orderly conduct of government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or knowingly engages in any act of physical violence against any person or property in any restricted building or grounds; or attempts or conspires to do so, shall be punished” accordingly. The bill also creates a floating bubble of protection around the president and other dignitaries, so although those covering the protests may be outside of the designated zones, they may still fall under the ambit of the law.

Other Resources

NPPA has also been working with a number of other organizations including the Reporters Committee for Freedom of the Press (RCFP), the American Civil Liberties Union (ACLU), the National Lawyers Guild (NLG), the Society of Professional Journalists (SPJ) and the Committee to Protect Journalists (CPJ). The RCFP has recently made available a mobile app for reporters that, according to its website, “gives reporters in the field immediate access to legal resources, particularly in situations where newsgathering or access may be stymied.” They also have a handbook entitled “Police, Protesters and the Press” available for free download. Additionally the Reporters Committee has partnered with prominent law firms in Tampa and Charlotte to assist “journalists who may be impeded or arrested” in those cities while covering the news. As I did in Chicago I have been working with the lawyers at Thomas & LoCicero in Tampa and McGuireWoods LLP in Charlotte. These firms will be providing free 24-hour legal assistance through a hotline available for journalists covering events in those cities. The RCFP main hotline number is 800-336-4243. Write important numbers down on your arm or another easily viewed part of your body so you have them if you need them.

It might also be informative to look at a recent study of human rights violations by police against those covering OWS as well as a story about a settlement in a federal lawsuit by a journalist who was arrested during the 2009 G-20 Summit in Pittsburgh.

Important Items

Important items to always have with you: government-issued photo I.D. (i.e. valid driver’s license), press credential(s) or press identification card(s) (if you have any), credit card(s) and some cash (in case you need to post bond). For its members NPPA also has available for purchase a “Member ID” which some have found a useful form of identification.

Potential for Arrest

When covering demonstrations, protests, marches and rallies you should be aware that there is a risk of arrest. Just because you may be a journalist, have a camera or believe that you have a lawful reason for being present to observe, document and report on these events does not provide immunity from being arrested along with those participating in these events. For example do not expect that you will be able to cross or walk through police lines. If you need to do so it is always advisable to seek permission before acting.

Complying with Police Orders

If a police officer orders you to move it is advisable to comply with the request. How far you move is something that you will have to decide for yourself. If you believe that the order is not a reasonable one, ask to speak to a supervisor or the public information officer if that is possible. It is important to be very aware that most police officer do not like to be questioned or challenged once they have told you to do (or not do) something and a mere hesitation, question or request may result in your detention or arrest. Only you can make that judgment call as to what to do. Every situation is different as is every police officer’s reaction to your behavior. For the most part officers have been trained to respond in an appropriate manner, but given that we all have different personalities and the fact that they may be standing out in the summer heat for many hours, sometimes in helmets and riot gear you should not necessarily count on them to be as reasonable as you might like.

Being Questioned or Detained

If you are questioned or detained remember to remain calm and act professionally. Do not get into an argument about your rights. If you are able to have a reasonable discussion that is one thing but if it becomes apparent that the officer is not interested in your point of view it is usually best to move on. Discretion is the better part of valor. If you are told that you are not free to leave or under arrest it is strongly advised that you immediately do what you are told. Officers deem anything less than full compliance as resisting arrest and will then escalate the force they believe is necessary to effectuate that arrest. That means you may be forcibly thrown to the ground, set upon by more than one officer and have your equipment broken in the process. This may occur not matter how compliant you are, but it best to cooperate to the fullest extent possible. It is also important that you identify yourself as a journalist as often as possible so there is no question who you are or what your purpose was in being there. At the first appropriate moment request that a commanding officer or the PIO be notified that a journalist is being detained or has been arrested.

Your Files

While covering these events police may ask to see your images, recordings or files. Be aware that you do not have to consent to such a request. They may try to intimidate, coerce or threaten you into doing so but “consent” must be voluntary. You should know that absent consent or “exigent circumstances” an officer may not seize your camera. Exigent circumstances only exist where an officer has probable cause to believe a crime has been committed AND that you have captured evidence of that crime on your camera AND that there is also a strong likelihood that such evidence may be lost if the camera is not seized. This last element should be difficult if not impossible to satisfy given that the main purpose of a journalist is to gather and disseminate information and images. Even when police do seize a camera they cannot view its contents without a proper warrant. There have been other instances where police have ordered journalists to delete files or have exercised self-help by deleting those files themselves. According to the Department of Justice “under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed” (emphasis added).

For many of the reasons listed above it is very important that journalists work in pairs or groups so that someone may be able to notify those of us working to protect your rights that you have been arrested or are in police custody. Another suggestion is that, to the extent possible, start recording events before a situation becomes a problem and continue to record for as long as possible. Such recordings may be the best evidence to refute whatever you may be charged with.

Also be aware that many police agencies will be working at these events. The Secret Service, FBI and Department of Homeland Security (DHS) will all have a presence as will the state police along with local city and county agencies. Each has an area of jurisdiction and each may be tasked with enforcing certain laws and ordinances. Just because you receive permission from one officer does not mean that another officer only a few feet away may deny that request. Don’t expect things to make perfect sense. Try to be flexible, creative and patient while covering these situations.

Arrest & Release

If you are arrested it is crucial to remember that anything you say may be used against you and possibly lead to additional charges. Saying you are a journalist is one thing. Talking about what happened is another. The charges against journalists arrested in these situations are usually misdemeanors, violations or infractions. Such charges may include but are not limited to: disorderly conduct, failure to disperse, trespassing, unlawful assembly, disturbing the peace, failure to follow a police order and obstruction. If you are arrested expect to be handcuffed behind your back (with traditional metal handcuffs or plastic zip-tie cuffs). You will also have to be processed, which includes having your fingerprints and photograph taken and your personal information such name, address, age, date of birth and social security number run through a national computer check for any previous criminal record or outstanding wants (other law enforcement agency looking for you) or warrants.

Once that process is complete (which may take hours depending on the number of those arrested and the number of officers assigned to booking) and depending on the charges bail will be set. Bail acts as a monetary guarantee that you will return for further court proceedings. Sometimes you may be released in your own recognizance (no money required) but that is unlikely if you are from out-of-town. In most you may be able to post a bond (another form of bail) or have someone do that for you.

The type of bond most often used for the types of charges listed above is known as a Signature or I-Bond. Such a bond requires that you post a minimal amount of money (i.e. $75.00 – $200.00) by cash or credit card. It is very important that you receive and securely keep your bond receipt because it usually contains all the information for your next court appearance including the date and location. You will also need that receipt in order get your money back once your case has been adjudicated. If you fail to appear in court the money posted will be forfeited to the court, an arrest warrant will be issued and once found you may be arrested again.

Practical Advice

In terms of practical advice, aside from looking for great images make sure you maintain “situational awareness” or in simpler terms – know what is going on around you and how it might affect your safety. Not only is it important to be aware of what the police are doing but after this past May Day demonstration where journalists were attacked by those who did not want to be photographed or just did not like the main stream media you should also keep an eye on those who might wish to cause you harm. See the Anarchist News posting.

It is very important to pay attention to your gut instinct and always look toward having a safe way out of the crowd. Once again, I would strongly recommend working in pairs or in a group so that you can watch each other’s backs (it is easy to get tunnel vision when your eye is up to the viewfinder). This also will help should you be injured or arrested and are unable to notify anyone of your situation. Fortunately for Getty’s Joshua Lott, he was with Scott Olson who immediately reported Josh’s arrest and we (the attorney for the RCFP and me) were able to immediately contact the Chicago Police, get the initial felony charges of mob-action reduced to the misdemeanor reckless conduct and obtain his release a short time later.

Training for law enforcement officers has included advice regarding the rights of journalists and the directive that they are not to be interfered with so long as they do not violate the law, create a safety hazard or interfere with police operations. While identifying yourself as a journalist may reduce the likelihood of arrest or help speed your release the best practice is to avoid being caught-up in a mass arrest by remaining near the edge of any large demonstration and also leaving yourself an avenue of escape if needed.

Preparation

It goes without saying that it will be hot in Tampa at the end of August and not much cooler in Charlotte during the first week in September. Stay hydrated. Have plenty of water with you (also be on the lookout for places where they will be providing free bottles of water). Stay in the shade when possible.

Wear light-colored, loose-fitting clothing. Dress neatly – if you don’t want to be confused with the protesters try to find a way to not look like them. Wear sunglasses and a hat. Apply sunscreen liberally and often. Watch out for fire ants if you do sit down anywhere outside. Be aware of the weather and check weather reports. Aside from it being hurricane season, thunderstorms are a common occurrence so watch out for lightening.

You may also consider purchasing a plastic insert for the inside of a baseball hat which will keep the sun off your head and provide some protection “against lacerations, bumps and scrapes to the head area.”

There is some debate about wearing vests or hats with PRESS written in large type. On one hand it leaves no doubt about your purpose but on the other may make you a target. The one thing you should do is clearly display your press credentials or ID’s if you have them.

Other items you may wish to have with you are eye protection and something to cover your nose and mouth with such as a surgical or painters mask. Of course sometimes wearing a mask will bring you extra police scrutiny but if the police have already deployed OC spray or other crowd control agents the benefit of the mask might well outweigh the downside. If you wear contact lenses consider going back to wearing glasses for the time you are out covering the protests. See How to prepare for OC Spray.

Your Equipment

Visual journalists carry equipment ranging from a cellphone camera or a simple point-and-shoot to high-end digital cameras, Betacams, laptops and other gear worth thousands of dollars. No matter what you use, the equipment is essential to doing your job and its safety and security should be of utmost importance to prevent it from becoming damaged, lost, stolen or seized.

For those who use Apple products, make sure that you activate the tracking and auto-lock features on their iPhones and iPads. Also be sure to write down the description and serial numbers of all your equipment and devices and store that list in a safe but easily accessible place in order to file a complete police report and to expedite recovery if they are stolen.

As for camera equipment, some also suggest being well connected to your gear using “Sun Sniper” straps that have steel cables running through them.

Also make backups of all your important files and keep it on a remote computer or USB drive which you have stored in a safe and secure place. Consider using the Cloud or similar remote storage for these files as well for livestreaming of your images in case your camera is lost, stolen or seized by police. For more info on staying safe read Poynter.

Conclusion

Police in Chicago exercised considerable restraint in allowing protesters to move into non-designated areas and did not interfere with non-permitted marches. The Chicago police also did not distinguish between credentialed and non-credentialed journalists when allowing access to most public places and, except for arresting a Getty photographer, did not interfere with those taking pictures, recording video, or livestreaming events. Given that command staff from both the Tampa and Charlotte-Mecklenburg police departments were present in Chicago to observe, it can only be hoped that they will take the same reasonable approach in dealing with these issues.

If you get into trouble or have questions about certain situations please feel free to contact me by email at [email protected] or by text or cellphone at 716.983.7800. For more information and links to reference material click here:

DISCLAIMER– This blog is not intended to be legal advice nor does it create an attorney-client relationship. It is not possible to anticipate every situation. Laws and regulations vary from one area to another and federal, state or local laws may apply. Anyone seeking legal advice should contact an attorney in their area of the country familiar with criminal and First Amendment Law.

As assaults on photographers by citizens and the police have steadily increased in the past couple of years, it is important that you as a photographer know what your rights are if you are involved in one of these incidents.

The truth of the matter is that Baldwin’s actions could have constituted battery without his ever laying a finger on Santos. The rule in a majority of states in the country is that a person’s body need not be physically harmed to bring a claim of battery. If unwanted and intentional contact occurs with something that is closely connected to the body such that it could be considered part of the plaintiff’s person, that contact can be treated as battery.

This can include a camera in one’s hand or around one’s neck. In fact in one case in Rhode Island, a woman was awarded damages for assault and battery after her mechanic, who she took a picture of when she didn’t like the job he did, admitted to placing his hand on the camera that she was holding in an attempt to stop her from taking his picture. Any unwanted touching of your camera can give rise to a lawsuit just as if your body was assaulted. The law accords you a right to personal space and that personal space can be disturbed through physical harm, or simply through touching deemed offensive or violative of personal dignity.

If your camera is physically interfered with while in your possession, know that you may not only have the right to bring a civil suit for damages, but that the aggressor may also be criminally liable.

As photographers we often consider our cameras as extensions of ourselves. We should take comfort knowing the law is in agreement.

Mickey H. Osterreicher, general counsel for the National Press Photographers Association (NPPA), spoke at the National Press Club (NPC) in Washington, D.C. on June 27, 2012 where he warned NPC members of ongoing issues concerning copyright infringement and the assault on the right to photograph in public places.

“It’s vital for citizens and journalists to know their rights when taking pictures or recording in public places. It’s even more crucial that police departments have appropriate policies and continuously train their officers regarding those rights,” Osterreicher said following the speech.

Osterreicher, who spoke to the NPC last January on a similar topic paid particular attention to the increasing prevalence of police interfering with the rights of the public and the media to photograph in public places. He noted that there have been a growing number of arrests of citizens and photographers who take pictures, particularly those who have documented activist gatherings such as the Occupy protests.

Osterreicher attributed the increase in these incidents to the widespread proliferation of cameras and smartphones, which make it possible for anyone to photograph and record matters of public concern and then provide that material to the rest of the world via the Internet. He said that police nationwide have shown a reluctance to allow such documentation, and have often responded with hostility and threats of arrest.

“I think it’s the culture of the police,” Osterreicher said. “Their idea of serve and protect often means protecting people and other officers from having their pictures taken.”

The NPPA has come to the defense of many of these photographers, both professional and amateur, because of its belief that government officials should never be left to determine what is or is not a newsworthy picture or story. The organization urges offending police departments to drop charges and to adopt policies that do not interfere with the public’s right to photograph.

Osterreicher talked about training sessions he has held with several police departments on how to interact with the press, his work with the Chicago Police and the Reporters Committee for Freedom of the Press during the NATO Summit and his preparations for the upcoming national political conventions.

He said he offers this service whenever he writes to police departments that have had incidents with photographers. “People ask me ‘Why do you write so many letters?'” Osterreicher said. “Well, the answer is that it’s cheaper than bringing a lawsuit. It’s cheaper for everyone, but as the police so often say ‘we can do this the easy way or the hard way,’ I think that a letter is the easy way but in some recently filed lawsuits NPPA has provided support against those departments and officers who blatantly violated our members’ constitutional rights.”

Osterreicher also spoke about instances in which police have taken cameras and phones and deleted photos or compelled the person who took the photos to do so. He reminded members of the NPC that under no circumstances do officers have the right to delete or destroy photographs or video.

Osterreicher said that he is hopeful that incidents like these decline once police are educated and trained regarding the rights of the press and public to photograph and record.

“The police aren’t going anywhere. The media isn’t going anywhere. We need to find a way to do our jobs without interference.”

April 10, 2012 — Tomorrow (4/11/12) at 1 p.m. in Central Islip, the New York Civil Liberties Union, the law firm of Davis Wright Tremaine, LLP, and the National Press Photographers Association will hold a press conference to announce a legal action regarding the Suffolk County Police Department’s policy and practice of obstructing the First Amendment right of the press and the public to record and gather the news about police activity in public places.

The legal action concerns a July 2011 incident in which professional video journalist and NPPA member Philip Datz was unlawfully arrested and detained by Suffolk County police while filming police activity on a public street in Bohemia. Following his release and the return of his equipment and tape, Datz posted video of the encounter on YouTube.

In January of this year Stephen Horrigan, an NPPA member was charged with felony eavesdropping and misdemeanor obstruction for using his cellphone to record a traffic stop by police officers in North Port, Florida. Horrigan came out of his nearby home to see what was going on and determine the newsworthiness of the situation. For doing nothing more than that, as he stood with other members of the public, he ended up spending a night in jail while facing a five year prison term if convicted on the eavesdropping charge. Adding insult to injury the police seized his phone as “evidence” and held it until recently.

On January 30. 2012 NPPA sent a letter to North Port Police Chief Kevin Vespia, strongly objecting to “the treatment and arrest of NPPA member and freelance photojournalist Stephen P. Horrigan.” The letter went on to state “in addition to the arrest, the fact that Mr. Horrigan’s camera was unlawfully seized is also extremely troubling. We believe that his video of the incident will show that officers acted in an arbitrary, capricious and unprofessional manner and appeared to have no concept of the First and Fourth Amendment rights granted under the United States Constitutions as well as similar protections provided by Florida law.” The letter concluded with the request “that the charges against Mr. Horrigan be immediately dropped; that his equipment and any recordings made by him be immediately returned; and that this incident be fully investigated. We further request that your department immediately issue orders directing officers to cease such activity and also that your department implement revised training for all officers regarding these matters.”

This case was covered extensively in the press by Billy Cox of the Sarasota Herald-Tribune and Carlos Miller of Photography is Not a Crime. As a justification for trampling on the rights of a citizen they produced a Probable Cause Affidavit and also referred to “a legal guideline that our officers have read and discussed during roll call. The issue here is not the video portion but the audio portion. This is the current guideline we use for cases like these. The guideline was issued by the legal counsel of the Palm Beach County Sheriff’s Office and permission was granted for distribution,” according to North Port Police Captain Robert Estrada, in an email.

After reviewing that “January 2010 North Port Police Bulletin #10-12” along with a Law Enforcement News Letter the NPPA sent a scathing email back to Captain Estrada and Chief Vespia citing cases and correcting the misinformation provided in the bulletin concerning the circumstances under which there may and may not be a “reasonable expectation of privacy.” Although there had been some positive dialogue between NPPA and the North Port Police there was no response to the email or even acknowledgement that it had been received.

In February an attorney from the Florida ACLU, Andrea Mogensen agreed to represent Mr. Horrigan, who as of March 11, 2012 had still not heard from the State Attorney’s Office (SAO) as to whether they planned to move forward on the original charges. On March 13, 2012 the Herald-Tribune printed a column by Eric Ernst supporting Horrigan’s’ position. Shortly thereafter Horrigan filed (on his own) a Motion for Hearing: A Plea for Relief from Prior Restraint seeking the return of his smartphone, battery and memory card, and alleging, among other things that the seizure of those items violated the First Amendment to the U.S. Constitution and Article I, Section 4 of the State of Florida Constitution as being a form of prior restraint on his ability to publish that material. He also asserted that as the operator of “a web-site news-gathering ‘blog’ and dues paying member of the National Press Photographers Association” he may not have any greater rights under the First Amendment than the public but that he enjoyed no less right because of it.

A week later a detective came to his house at 7am to tell him that he could pick-up his phone at the evidence room. In utter surprise he found that the video had not been deleted, although he believes that it had been viewed or copied. He posted it on YouTube for everyone to see. So far it has over 4,200 hits. The Herald- Tribune posted an editorial urging police, prosecutors and legislators to improve their guidelines, training and practices and also revise the eavesdropping statute.

Yesterday the SAO declined to prosecute and dropped the charges, noting in a memo that the people could not meet their burden of proof beyond a reasonable doubt and also questioned whether the officer had an expectation of privacy in this instance. As for the “resisting, obstructing, or opposing an officer without violence charge,” State’s Attorney Eric Werbeck concluded that Horrigan did not meet any of the elements constituting that crime either.

While the NPPA is gratified to see that prosecutors had the common sense to drop these charges (as has happened in almost all such cases around the country) it is too bad that the North Port police did not use the same good judgment. As is often said in police parlance “we can do this the easy way or the hard way.” The latter choice resulted in six-figure settlements in two recent cases. Once again, it appears that police ignorance and arrogance concerning constitutional rights may result in another costly combination, ultimately born by taxpayers who can ill afford it.

In a late-breaking development Ms. Mogensen announced in a press release that she has filed a notice with the City of North Port claiming monetary damages in excess of $200,000.00 based upon false arrest, retaliation for the exercise of First Amendment rights, and malicious prosecution.